4
Civil Liberties and
Civil Rights
AMERICAN GOVERNMENT
POWER AND PURPOSE
Lowi  Ginsberg  Shepsle  Ansolabehere
Copyright © 2010, W. W. Norton & Company, Inc.
Although we tend to use
the terms interchangeably,
a useful distinction can be
made between
civil liberties
and
civil rights.
Civil liberties are
protections of citizens
from unwarranted
government action.
Civil rights describe
government’s
responsibility to protect
citizens.
The History Principle:
How we got here
matters.
The history of rights and
liberties in America involves
the changing nature of the
federal relationship. The
national government has
increasingly protected
citizens from other
government agencies and
private actors.
The first ten amendments to the Constitution
constitute the Bill of Rights.
◦ These amendments were designed to protect the
basic freedoms of American citizens.
◦ The meanings and applications of these rights have
changed over time as judicial interpretation of these
freedoms has changed.
The freedoms included in the Bill of Rights
include:
◦ the right to free speech;
◦ the right to the free exercise of religion;
◦ prohibitions against unreasonable
searches and seizures;
◦ guarantees of the due process of law.
As restraints on government action,
the guarantees provided in the Bill of
Rights might better be understood
as a Bill of Liberties.
Although it has been widely popular
throughout most of American
history, the Bill of Rights was
controversial at the time of the
Founding.
In Federalist 84, Alexander Hamilton (as Publius)
objected to calls for a “Bill of Rights.”
Hamilton argued:
1. The Constitution already contained
sufficient protections of rights.
Hamilton further argued:
2. “Bills of rights” are appropriate in
monarchies but are, at least, unnecessary in
republics because, as he said, in a republic
“the people surrender nothing” and “retain
everything.”
Moreover, Hamilton argued:
3. By “enumerating” rights, the Bill of Rights
would actually restrict the rights Americans
enjoyed because
“They would contain various exceptions to
powers which are not granted; and, on this very
account, would afford a colorable pretext to
claim more than were granted. For why declare
that things shall not be done which there is no
power to do?”
In partial response to Hamilton’s third criticism of
the Bill of Rights, the Ninth Amendment was added
to the Constitution.
“The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage
others retained by the people.”
Like Alexander Hamilton,
James Madison too thought
the main text of the
Constitution, particularly the
separation of powers and
federalism, provided
important protections of
rights.
“In the compound republic of America, the power
surrendered by the people is first divided between
two distinct governments, and then the portion
allotted to each subdivided among distinct and
separate departments. Hence a double security
arises to the rights of the people. The different
governments will control each other, at the same
time that each will be controlled by itself.”
--James Madison, Federalist 51
Implicit in Madison’s “double security ” for “the
rights of the people” is the idea that the central
government will protect the people from the states
and vice versa.
How well has the federal division of power provided
this “security” to “the rights of the people”?
Throughout American
history, the Courts have
wrestled with the question of
whether the Bill of Rights
restrains only the national
government or whether its
protections applicable to the
states.
Barron v. Baltimore (1833)
Barron sued Baltimore for
rendering his wharf useless on
that grounds that the city had
violated his Fifth Amendment
rights by taking his property
without “just compensation.”
The Supreme Court
established “dual
citizenship” by ruling that
the Fifth Amendment and
the Bill of Rights only
protected citizens from the
national government.
“The fifth amendment must be understood as
restraining the power of the general government,
not as applicable to the States.”
—Chief Justice John Marshall, Majority
Opinion, Barron v. Baltimore (1833)
As a precedent, Barron v. Baltimore established a
long shadow on future interpretations of rights
protection.
Although these subsequent cases reaffirmed the
concept of “dual citizenship,” the adoption of the
Fourteenth Amendment in 1868 seemed to
challenge the concept of “dual citizenship.”
At first, the Fourteenth Amendment seemed to
affirm the concept of dual citizenship.
“All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside.”
The next line, however, seems to indicate that the
national government might now provide Madison’s
double security and protect rights from state
encroachment.
“No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of laws.”
Despite this language in the Fourteenth
Amendment, the U.S. Supreme Court reaffirmed
the Barron precedent in the Slaughterhouse cases
in 1873.
Slaughterhouse’s narrow interpretation of the
Fourteenth Amendment set the stage for a
process by which the Bill of Rights would be
“selectively incorporated” into the Fourteenth
Amendment.
Selective Incorporation
On a case-by-case basis,
the Supreme Court began
recognizing a role for the
national government in
protecting citizens from
state governments.
Incorporation of The Bill of Rights into The Fourteenth Amendment
American Government, 11th Edition
Copyright © 2010 W.W. Norton & Company
A first “wave” of
incorporation occurred
in the 1920 and 1930s,
applying key elements
of the First
Amendment to the
states.
Palko v. Connecticut (1937)
represents an important
interlude wherein the
Supreme Court refused to
incorporate “double
jeopardy” (Fifth
Amendment) on the basis
that it is not a right that is
“implicit in the concept of
ordered liberty.”
In the 1960s, a second
wave of incorporation
focused on applying and
enforcing the rights of the
criminally accused in the
states.
Whereas at the beginning of the twentieth century,
the Supreme Court had incorporated into the
Fourteenth Amendment only the “eminent domain”
clause of the Fifth Amendment, by 1965 and 1973
the Court had incorporated the “penumbral” (or
implied) right to privacy into the Fourteenth
Amendment in Griswold v. Connecticut and Roe v.
Wade.
The provisions of the Bill of Rights are subject to
ongoing evolution and interpretation by the
Courts, which give clearer meaning and precise
application to the Constitution’s various
protections.
Elements of the First Amendment with respect to
religion:
“Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof”;
 Separation of church and state
 Free exercise of religion
Although Thomas Jefferson
believed in a “wall of
separation” between the
church and the state, Supreme
Court interpretations of the
First Amendment’s
“establishment clause” have
left room for some mingling
of the government and
religion.
In Lemon v. Kurtzman
(1971), the Supreme
Court held that
government aid to
religious schools would
be constitutional if they
met three criteria,
known as the Lemon
test.
Lemon Test:
1. The government action
must have a secular
purpose;
2. Its effect should neither
advance nor inhibit
religion;
3. It must not lead to
excessive entanglement
with religion.
The First
Amendment also
guarantees
citizens’ rights to
believe and practice
whatever religion
he or she chooses;
this is the free
exercise clause.
In 1993, Congress passed the
Religious Freedom Restoration
Act (RFRA), further protecting
citizens’ free exercise of
religion, though key elements
were invalidated by the Supreme
Court in the 1997 City of Boerne
v. Flores case, wherein the Court
reserved the institutional right
to balance religious liberty
claims against public policy.
First Amendment protections of
freedom of speech and of the press
enjoy some of the strongest
constitutional protections.
Encroachments on these First
Amendment rights often require that
the government meet a strict scrutiny
standard, which requires the
government to show that its action is
constitutional.
Second Amendment:
“A well regulated Militia, being
necessary to the security of a
free State, the right of the
people to keep and bear Arms,
shall not be infringed.”
Ambiguity and disagreement
over the importance of the
clause of the Second
Amendment concerning a
“well regulated Militia,” has
left Second Amendment
protections problematic.
Advocates of Second
Amendment rights
generally adopt
legislative strategies
against gun control
legislation rather than
taking their cases to
court.
One notable victory for
gun control advocates
was the 1994 Brady bill,
passsed by a Democratic
Congress and signed by
President Clinton, which
provided for background
checks on handgun
purchases and banned
assault weapons.
Still, in 2004, a
Republican Congress and
President George W. Bush
pleased advocates of
Second Amendment
rights by allowing the
assault weapons ban to
expire without renewal.
Fourth Amendment:
“The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable search and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized.”
Fifth Amendment:
“No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for
the same offence to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be
deprived of life, liberty, or property, without due
process of law; nor shall private property be taken
for public use, without just compensation.”
Sixth Amendment:
“In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the
crime shall have been committed, which district
shall have been ascertained by law, and to be
informed of the nature and cause of the
accusation; to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.”
Eighth Amendment:
“Excessive bail shall not
be required, nor
excessive fines imposed,
nor cruel and unusual
punishments inflicted.”
How are the Fourth, Fifth,
Sixth, and Eighth
Amendments’ protections
upheld in practice?
Rules upholding Constitutional rights of the accused:


The exclusionary rule excludes evidence obtained
in violation of Fourth Amendment protections
against warrantless searches and seizures.
The Miranda rule ensures that arrested persons
must be informed of their rights to “remain
silent” and to have legal counsel.
In Griswold v. Connecticut (1965)
and Roe v. Wade (1973), the
Supreme Court held that American
citizens enjoyed a “penumbral” (or
implied) right to privacy.
In Griswold, Justice William O.
Douglas argued that the Third,
Fourth, and Fifth amendments
suggested a “zone of privacy.”
Although opponents of
abortion and others skeptical
of a “right to privacy” argue
that the Court
inappropriately created this
right, Justice Arthur
Goldberg, concurring with
Douglas’s opinion, cited the
Ninth Amendment as
additional justification for
the right to privacy.
Ninth Amendment:
“The enumeration in
the Constitution, of
certain rights, shall
not be construed to
deny or disparage
others retained by the
people.”
Inasmuch as the “privacy
right” was forged in
regard to birth control in
the Griswold case, it has
subsequently been
applied not only to
abortion cases but also to
cases involving gay
rights.
In Lawrence v. Texas
(2003), the Supreme
Court argued that gays
are “entitled to respect
for their private lives” out
of reach of the state.
Coinciding with the increased rights protection via
selective incorporation, the Supreme Court and the
national government also began to expand civil
rights protection for African Americans.
Civil Rights are legal or moral
claims for protection that
citizens are entitled to make
upon the government.
Whereas civil liberties concern those
things that governments cannot do to
citizens, civil rights involve citizens
appealing to the government to
protect them from other citizens,
social actors, or some aspect of the
government itself.
The “Civil War amendments” to the
Constitution are an important legal basis
for civil rights protection in the United
States.
◦ The Thirteenth Amendment abolished
slavery.
◦ The Fifteenth Amendment guaranteed
voting rights for black men.
◦ Most directly, the Fourteenth
Amendment provides the basis for
national government protection of
rights.
Just as the Fourteenth Amendment
was the basis for the selective
incorporation of the Bill of Rights,
interpretations of its equal
protection clause similarly are the
basis of many of the debates of civil
rights.
Equal protection clause: “No State
shall make or enforce any law which
shall . . . deny to any person within
its jurisdiction the equal protection
of the laws.”
In its 1896 Plessy v. Ferguson
ruling, the Supreme Court
upheld the racial segregation
system of Jim Crow, arguing
that “separate but equal” train
cars and other facilities did not
violate the Fourteenth
Amendment’s “equal
protection” clause.
“Laws permitting, and even requiring, their
separation [by race] . . . do not necessarily imply
the inferiority of either race to the other.”
—Justice Henry Billings Brown
Plessy v. Ferguson (1896)
The Policy Principle:
Political outcomes
are the products of
individual
preferences and
institutional
procedures.
Although the Plessy
decision was a setback for
the civil rights movement,
the “separate but equal”
ruling became an
important institutional rule
that they could use to
argue in court cases like,
for example, Sweatt v.
Painter (1950).
Plessy’s “separate but equal”
ruling held until it was
overturned in Brown v. Board of
Education in 1954 when the
court found that, in the words of
Chief Justice Earl Warren, “in the
field of public education the
doctrine of ‘separate but equal’
has no place.”
In Brown v. Board of
Education, the Supreme
Court struck down the
“separate but equal”
doctrine and the
practice of separation
on the basis of race as
“inherently unequal.”
After Brown, states
could no longer use
race as a factor in
discrimination in law
and the court would
apply its strict scrutiny
standard to any case
related to racial
discrimination.
The Supreme
Court’s decision in
Brown had
important political
consequences.
First, it began a slow
process of school
desegregation that was
often met with
resistance from state
and local governments.
The Percentage of Southern Black School Children Attending School with Whites, 1955–73
American Government, 11th Edition
Copyright © 2010 W.W. Norton & Company
Moreover, it sparked greater resolve for a
growing civil rights movement that would use
social protest to press for political change,
culminating in important congressional
actions, particularly the 1964 Civil Rights Act
and the 1965 Voting Rights Act.
After winning in the
Supreme Court, civil rights
groups turn to Congress for
further changes.
Important divisions in Congress’s Democratic
majority—between its progressive northern wing
and its conservative southern wing (which
included many members who favored
segregation)—kept Congress from considering
and passing important civil rights legislation.
By 1964, three things had changed in Congress
that facilitated consideration and passage of Civil
Rights legislation.
1. Larger Democratic majorities in Congress;
2. Cooperation of key northern Republicans;
3. The skilled legislative leadership of President
Lyndon Johnson.
In 1964, Congress
passed the Civil
Rights Act, which
extended the national
government’s role in
rights protection.
The 1964 Civil Rights Act:
 Protected voting rights;
 Protected access to public
accommodations;
 Ensured the
desegregation of public
schools;
 Outlawed discrimination
in employment on the
basis of race, religion,
and gender.
In 1965, Congress passed
the Voting Rights Act, which
protected African Americans’
right to vote, particularly in
those southern states that
had a history of obstructing
the African American vote.
Voter Registration in Selected Southern States:
Differences between Percentage of White and Nonwhite
Voting Age Populations Registered to Vote, 1960-2000
70
60
50
40
30
20
10
0
1960
1980
2000
-10
Alabama
Mississippi
Virginia
Source: Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker, The Supreme Court
Compendium: Data, Decisions, and Developments, 3rd edition (Washington, DC: CQ Press, 2003), p. 759.
Figures represent the percentage of the white voting-age population registered to vote minus the percentage of
nonwhite voting-age population registered to vote.
The Policy Principle:
Political outcomes
are the products of
individual
preferences and
institutional
procedures.
The adoption of the 1964
Civil Rights Act and the 1965
Voting Rights Act established
institutional procedures that
expanded African American
political power in ways that
would allow for African
Americans’ preferences,
providing a greater voice in
all manner of political
decisions, including the
selection of African American
officeholders.
Analyzing the Evidence
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